[EL] What’s Going to Happen with a Challenge to North Carolina’s Congressional District Partisan Gerrymander? Two Significant Hurdles to a Lawsuit.

Thu Sep 5 11:58:03 PDT 2019

Whatever the precedential effect (if any) of the trial court's *Common
Cause v. Lewis* judgment, collateral estoppel may be a bigger issue facing
North Carolina's legislative leadership in a challenge to the congressional
districts.  The four requirements appear to be present:
(1) (presumably) the same parties from *Common Cause *will be parties to
any action challenging the congressional districts;
(2) (many of) the same issues will arise in both cases;
(3) those issues were actually litigated in *Common Cause*, and
(4) the issues were necessary to the *Common Cause *judgment.
*See Turner v. Hammocks Beach Corp.*, 681 S.E.2d 770, 773 (N.C. 2009).
Depending on how many issues are subject to collateral estoppel, plaintiffs
may be able to bypass significant chunks of otherwise time-consuming
litigation.

The primary question will be which of the issues litigated and decided
in *Common
Cause *are *identical *to issues that will arise in a challenge to the
congressional redistricting.  *See State v. Summers*, 528 S.E.2d 17, 20
(N.C. 2000).  I suspect the plaintiffs have a good argument that many of
the issues--*e.g.*, concerning the Hofeller files or the General Assembly's
partisan intent in drawing redistricting plans--would be identical in
both *Common
Cause *and in an action concerning the congressional redistricting.  The
Superior Court's decision even points out numerous similarities between the
congressional redistricting and the legislative redistricting processes.  *See
Common Cause*, slip op. at 298.

All that said, I am no expert in the North Carolina law of judgments;
perhaps others on this list with more expertise will chime in with their
thoughts/corrections.

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T

On Thu, Sep 5, 2019 at 12:36 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> What’s Going to Happen with a Challenge to North Carolina’s Congressional
> District Partisan Gerrymander? Two Significant Hurdles to a Lawsuit.
> <https://electionlawblog.org/?p=107202>
>
> Posted on September 5, 2019 9:34 am
> <https://electionlawblog.org/?p=107202> by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> Democrats are now pondering
> <https://www.nbcnews.com/politics/politics-news/democrats-eye-move-against-gop-congressional-gerrymandering-north-carolina-n1049686> a
> state court challenge to North Carolina’s partisan gerrymandering of the
> state’s 13 congressional districts, following a state court ruling
> <https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf> that
> the state legislative districts are a partisan gerrymander
> <https://electionlawblog.org/?p=107177>. The U.S. Supreme Court in the
> Rucho <https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf> case
> rejected a challenge to North Carolina’s congressional districts based on
> the U.S. constitution but that would not preclude a state constitutional
> challenge. But there are two significant hurdles.
>
> First, it is not clear that there is enough time to bring such a challenge
> and get it done in time to affect the 2020 elections, the last elections to
> be used under the existing maps before the next round of redistricting. I
> am surprised there was not a state case against the congressional districts
> in the works earlier, and given discovery and potential appeals, and the
> upcoming calendar, it may just be too late. Even if state courts do not
> follow the Purcell Principle
> <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>, at some
> point changing district lines comes too late.
>
> Second, it is not clear to me that the ruling earlier this week has any
> precedential value in a challenge to congressional maps. Nick
> Stephanapoulos writes <https://electionlawblog.org/?p=107198>: “the North
> Carolina decision is just as applicable to congressional as to state
> legislative districts. North Carolina’s gerrymandered congressional
> plan—the plan the Supreme Court failed to invalidate in *Rucho*—is thus
> on thin ice. And so will be any efforts by the North Carolina legislature
> to gerrymander (or even to consider partisanship) in the 2020 redistricting
> cycle. As long as the North Carolina decision remains good law, North
> Carolina maps must be nonpartisan.” But I’m not sure that this is right.
>
> The recent state decision was a state trial court, and I do not know that
> it is binding precedent in any challenge to the congressional maps. Perhaps
> under North Carolina law the new challenge would go before the same
> three-judge court. If not, generally speaking, trial court rulings are not
> precedential for other trial courts. Indeed, as I’ve explained
> <https://electionlawblog.org/?p=107179>, one of the reasons that North
> Carolina Republicans may have thrown in the towel on the state legislative
> race was to avoid a likely adverse opinion from the state supreme court,
> which would have been a definitive ruling on the meaning of the state
> constitution.
>
> So we will see what the next steps bring, but it is far from automatic
> that those congressional districts get changed for 2020.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107202&title=What%E2%80%99s%20Going%20to%20Happen%20with%20a%20Challenge%20to%20North%20Carolina%E2%80%99s%20Congressional%20District%20Partisan%20Gerrymander%3F%20Two%20Significant%20Hurdles%20to%20a%20Lawsuit.>
>
> Posted in redistricting <https://electionlawblog.org/?cat=6>
>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
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